By Jeremy D. Morley
When the Hague Convention Won't Help
The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) provides that a child who is habitually resident in one party country, and has been removed to or retained in another party country in violation of the left-behind parent's custodial rights, should be promptly returned to the country of habitual residence. However, many countries are not parties to the Convention, and even some that are parties enforce the laws only sporadically or in accordance with their own societal customs. Thus, the attorney must take special care when faced with the possibility that his client's foreign national spouse might take the children to such a country.
Preventing Abductions to Non-Hague Countries
The mother in Ahmad v Naviwala, 306 A.D.2d 588, 762 N.Y.S.2d 125 (3rd Dept. 2003), lv dismissed 100 N.Y.2d 615 (2003) learned these lessons the hard way. The Family Court awarded her sole custody of the children but unfortunately (although represented by counsel!) she permitted the father to take them to Saudi Arabia for a 3-month visitation. Not surprisingly (to a jaundiced international family lawyer), the father refused to return the children from Saudi Arabia, refused to allow the mother to see the children and obtained an ex parte custody order in his favor from a Saudi court. Had he kept the children in Saudi Arabia, they would doubtless have never been reunited with their mother. Fortunately, he took the children on a trip to Texas, where they were seized pursuant to a Broome County Family Court order, and returned to New York.
The Family Court then granted custody to the father (!), with visitation rights to the mother. Recognizing that Saudi Arabia was not a party to the Hague Convention, and that the mother could not enforce her visitation rights there, the court imposed various conditions upon the father intended to ensure that he would allow the mother to visit the children in Saudi Arabia. For violating the prior custody order, the father was sentenced to a suspended term of incarceration conditioned upon his future compliance.
On appeal, the Third Department awarded custody to the mother, stressing the fact that the father had intended to permanently remove the mother from the children's lives. The Appellate Division found that the Family Court's efforts to ensure the mother's access to the children in Saudi Arabia were entirely insufficient, and allowed visitation by the father only in the United States, with the mother having sole custody of the children's passports. A successful outcome for the mother was obtained only because the father had brought the children to Texas. This case highlights the fact that, all too often, the courts are reluctant to impose strict conditions to prevent parental child abduction until after an abduction has actually taken place.
United States v. Amer
In United States v. Amer, 110 F.3d 873 (2d Cir. 1997), Egyptian parents were living separately in New York without a custody order. The father abducted the children to Egypt. The mother's efforts to secure their return failed and the father procured an order from an Egyptian court granting him sole custody. He returned to the United States without the children and was arrested for international parental kidnapping. He was sentenced to 24 months' imprisonment and a 1-year term of supervised release, with the special condition that he return the children to the United States. The Second Circuit upheld the requirement that the children be returned, since it was closely tailored to the crime and it served to deter others from wrongfully taking their children overseas.
While Muslim countries are generally not parties to the Hague Conven-tion (Turkey being an exception, although it does not fully comply with its treaty obligations), the problem extends also to many other countries. For example, those Asian countries with Confucian-based state family registration systems, such as China, Japan, Korea and Taiwan, are not parties to the Hague Convention (except for Hong Kong and Macau), and provide minimal assistance for the return of parentally abducted children.
Japan is a renowned haven for child abduction, particularly if the abducting parent is a Japanese national. See http://www.international-divorce.com/ca-japan.htm. In any custody battle involving a Japanese national, it would be foolhardy not to draft a custody order that precludes visits to Japan considering the possibility that that parent might take the child permanently to Japan. The courts in Japan will not enforce foreign custody orders and will not take any effective steps to return abducted children. See "Japanese Family Law -- or The Lack Thereof!," by Jeremy D. Morley, http://www.international-divorce.com/d-japan.htm. A foreign parent in a Japanese court will have minimal chance of securing anything more than extremely occasional visitation with his or her child in Japan if the other parent is Japanese. (Thus, in a case on which the author is currently working, the American father who lives in Japan has been allowed to see his child only once in 6 months, for only 2 hours, in court and with supervision).
Accordingly, if a Japanese parent threatens to take a child to Japan, or wishes to take a child for a temporary visit there during a time of marital strife, it is highly advisable to seek a court order barring any such visit. While a U.S. court will doubtless be skeptical when faced with such a motion, it is extremely important to educate the court as to the law, procedure, customs and traditions of Japan, all of which support a Japanese parent's desire to raise a child in Japan to the total exclusion of the other (foreign) parent. Similar admonitions apply with respect to other countries that are not party to the Hague Convention.
Parents who oppose prohibiting the removal of children for temporary overseas visits often assert that such orders are unnecessary, because wrongfully retaining a child in a foreign country is a felony. The International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. 1204, makes it a federal offense to remove a child from the United States or to retain a child (who has been in the United States) outside the United States with intent to obstruct the exercise of parental rights (custody or visitation). Unfortunately, this law often makes a bad situation worse, since parents who have wrongfully retained children overseas fear that they will be arrested if they return to this country (as happened in U.S. v. Amer, supra). In addition, foreign countries rarely permit extradition for international parental kidnapping, and those countries that are the most likely to do so are countries that are already parties to the Hague Convention.
Preventing Abductions to Non-Compliant Hague Countries
Merely because a country is a party to the Hague Convention does not mean that it will effectively enforce its treaty obligations. For example, the U.S. State Department has asserted that Mexico is "non-compliant" with the terms of the Convention. U.S State Department Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, 2004. Mexico's noncompliance results from the following problems:
- Mexico has not enacted any legislation to implement the Hague Convention, which has not been integrated into the Mexican legal system.
- The Mexican Central Authority has no law enforcement powers and Mexican law enforcement agencies make no serious efforts to locate parentally abducted children.
- The burden of finding an abducted child in Mexico is left entirely to the left-behind parent. Mexican authorities provide no effective help and if the child cannot be located, nothing happens.
- There is an apparent lack of understanding of the Convention among the judiciary in Mexico.
- The Mexican Central Authority does not have adequate resources to perform its functions under the Convention.
- The "amparo" (a special appeal in Mexico claiming a violation of constitutional rights) is used by taking parents to block Hague proceedings indefinitely.
- Mexican courts are able to reconsider the facts of a Hague at any stage of the proceeding, which allows proceedings to be prolonged substantially.
Accordingly, custody orders concerning parents with strong ties to Mexico must be drafted so as to minimize the risk that the child will be taken to that country. It would be reckless to permit a Mexican parent who has expressed a desire to move to Mexico, and who has strong family or business ties to Mexico, to take a child into that country for a visit, regardless of the conditions that may be imposed to encourage the parent to bring the child back to this country.
The State Department's 2004 report establishes that similar concerns exist with respect to Austria, Colombia, Ecuador, Honduras, Mauritius, Turkey and Romania and, to a somewhat lesser extent, several other countries.
When courts receive applications to prevent children's temporary visits to their parents' country of origin, they are tempted to rely on the need to respect other countries' legal systems and on international comity to preclude them from deciding that the foreign country may not provide sufficient guarantees that the child will be returned. However, if counsel marshal extensive evidence to support the fact that a foreign country will not respect or effectively enforce an American custody order, the courts should be prepared to reach the necessary conclusion and issue an effective remedy. It is far better to prevent children being taken to such countries that do not fully respect their international treaty obligations than to attempt to procure their recovery after the fact.